State of Exception

1. Introduction

State of Exception (Stato di eccezione) is a short theoretical treatise in which Giorgio Agamben examines the legal form and political stakes of emergency powers in modern states. The book focuses on situations in which constitutional norms are suspended in the name of crisis management, exploring how this suspension affects the relationship between law, sovereignty, and individual life.

Agamben’s central contention is that the state of exception—traditionally considered a temporary, extraordinary measure—has become a paradigm of government in contemporary democracies. Rather than treating emergency clauses as marginal, he analyzes them as windows into the basic structure of legal orders, because they reveal how the legal system confronts its own limits.

The work is both historical and conceptual. It traces the genealogy of emergency powers from Roman iustitium and medieval doctrines of necessity to modern constitutional provisions and executive decrees. At the same time, it stages a theoretical dialogue with figures such as Carl Schmitt and Walter Benjamin to clarify how sovereignty is tied to the ability to decide when law is suspended.

Agamben introduces several key notions that organize the book:

• the zone of indistinction between law and non-law produced by emergency measures;
• force-of-law detached from formal legislation;
• the exposure of persons as bare life, subject to coercion without normal legal guarantees.

While rooted in continental philosophy and political theology, State of Exception also draws on constitutional texts, case law, and post‑9/11 security legislation. It is intended as a contribution to debates on constitutionalism, human rights, and biopolitics, offering a conceptual framework rather than a policy program. Readers encounter both a reconstruction of legal doctrines and a critical hypothesis about the increasing normalization of exceptional powers in contemporary governance.

2. Historical and Political Context

State of Exception was composed in the early 2000s, a period marked by renewed global concern with emergency powers and security legislation, especially after the terrorist attacks of 11 September 2001. Agamben writes explicitly against the backdrop of the “war on terror”, the U.S. Patriot Act, and new European counterterrorism measures, which many observers viewed as expanding executive authority and curtailing civil liberties.

Post‑war and Late‑20th-Century Background

Long before 9/11, constitutional democracies had developed legal frameworks for emergencies (e.g., Weimar Germany’s Article 48, France’s Article 16, or emergency regulations in the UK and Commonwealth). The experiences of fascism and totalitarianism led post‑1945 constitutional designers to incorporate emergency provisions while attempting to build in safeguards and temporal limits.

From the 1960s onward, states frequently invoked emergency powers in response to:

• decolonization conflicts and national liberation struggles;
• political violence, terrorism, and separatist movements (e.g., in Italy, Germany, Northern Ireland);
• economic crises and social unrest.

Scholars in constitutional law and political theory had already begun to debate whether such measures were compatible with liberal-democratic norms.

Immediate Political Context of Composition

The early 2000s saw what many commentators described as an intensification and normalization of emergency practices:

Agamben situates his analysis within this moment, but aims to show that the underlying structure of the state of exception long predates it. Proponents of his approach argue that the early 21st century made especially visible the trend toward permanent emergency, while critics maintain that many of these measures remained subject to legal and political checks.

The book thus responds both to immediate controversies around security policy and to a longer tradition of reflection on crisis governance in constitutional democracies and authoritarian regimes alike.

3. Author, Project, and Composition

Giorgio Agamben

Giorgio Agamben (b. 1942) is an Italian philosopher associated with continental political philosophy, critical legal theory, and political theology. Trained in law and philosophy, he participated in seminars with Martin Heidegger, edited Walter Benjamin’s writings in Italian, and has written extensively on language, aesthetics, and politics. His work is often characterized by close readings of legal, theological, and philosophical sources to illuminate contemporary issues.

The Homo Sacer Project

State of Exception forms part of Agamben’s multi-volume Homo Sacer project, which investigates how Western politics relates to life, law, and sovereignty. The project explores the figure of homo sacer (a person who can be killed but not sacrificed) as a paradigm for understanding how modern states expose individuals as bare life. Within this larger inquiry, State of Exception focuses specifically on the legal form that enables such exposure.

Composition and Publication

The book grew out of lectures and essays Agamben delivered in the early 2000s, as debates over emergency legislation intensified. It was first published in Italian in 2003 by Bollati Boringhieri as Stato di eccezione, and translated into English by Kevin Attell in 2005.

Agamben’s preface indicates that he conceived the text as a systematic treatment of issues that had appeared more implicitly in Homo Sacer: Sovereign Power and Bare Life (1995). The composition period (roughly 2001–2003) coincides with rapid legal developments in the United States and Europe after 9/11; the book explicitly references these developments but aims to articulate a broader theoretical framework.

Relation to Agamben’s Broader Oeuvre

Other works by Agamben—such as Means Without End, The Time That Remains, and subsequent volumes of Homo Sacer—engage related themes of messianic time, political community, and economic governance. Commentators often read State of Exception alongside these texts to understand how Agamben links legal structures of emergency with wider questions of temporality, theology, and government.

The treatise is thus situated at the intersection of Agamben’s legal-historical interests and his broader philosophical project on sovereignty and life.

4. Place within the Homo Sacer Series

Within the Homo Sacer series, State of Exception is typically identified as the second major volume. It elaborates one specific mechanism through which, according to Agamben, modern politics produces and manages bare life.

Sequential Position and Thematic Role

Homo Sacer initially sketches the idea that the camp is the “nomos of the modern,” a space where law is suspended and life is exposed to power. State of Exception returns to this claim to clarify the juridical structure that makes such spaces possible.

Conceptual Integration

In the architecture of the series:

• Sovereignty (who rules) and exception (how law can be suspended) are treated as mutually defining.
• The state of exception serves as the technical legal form through which sovereignty engages directly with bare life.
• The analysis of political theology begun in the series is deepened here by focusing on the analogy between theological miracles and juridical exceptions.

Commentators often see State of Exception as filling a gap in Homo Sacer: it provides the historical and doctrinal detail needed to support the earlier, more schematic claims about camps and bare life. At the same time, later volumes build on its thesis that contemporary governance tends to operate through flexible zones where legal norms are held in suspension.

5. Structure and Organization of the Work

State of Exception is relatively brief but densely argued. It is organized into a preface, five chapters, and an appendix, each with a specific task within the overall argument.

Overall Layout

Internal Progression

The work moves from descriptive and historical analysis toward more speculative and philosophical reflection:

1. Chapter 1 introduces the state of exception and argues for its centrality in modern governance.
2. Chapter 2 refines the legal vocabulary, isolating concepts such as force-of-law and examining contemporary examples (e.g., security legislation).
3. Chapter 3 steps back historically to reconstruct the “original structure” of emergency measures in Roman and medieval law.
4. Chapter 4 stages a conceptual debate with Schmitt and Benjamin, exploring the “void” exposed by the exception.
5. Chapter 5 uses anthropological motifs—feast, mourning, and anomie—to illuminate how societies formally bracket their own legal orders.

The appendix supports the earlier chapters by citing constitutional texts, legal commentaries, and passages from Schmitt and Benjamin, enabling readers to trace Agamben’s sources and interpretive moves.

6. The Concept of the State of Exception

In State of Exception, Agamben treats the state of exception (stato di eccezione) as a distinctive juridico-political form in which normal legal norms are suspended by a sovereign decision. This suspension is justified by reference to a crisis—war, insurrection, terrorism, or other emergencies—but its formal structure, rather than any specific content, is the primary object of his analysis.

Defining Features

Agamben identifies several features that, in his view, characterize the state of exception:

He emphasizes that the state of exception is neither fully inside nor outside the legal order. It creates a “zone of indistinction” where acts are performed with force-of-law but without being grounded in normal legislation.

Competing Perspectives

Different traditions conceptualize the state of exception in varying ways:

• Constitutional theory often treats it as a necessary tool for safeguarding the legal order in extreme circumstances, stressing procedural safeguards and temporal limits.
• Schmittian political theology sees the decision on the exception as revealing the essence of sovereignty.
• Critical and human-rights approaches highlight risks of abuse, arguing that emergency measures can undermine the rule of law and civil liberties.

Agamben’s contribution lies in synthesizing these strands into a general concept: the state of exception as a structural device of modern governance, rather than a rare anomaly, and as a key to understanding how law relates to violence and life.

7. Legal Foundations: Iustitium, Necessity, and Emergency Powers

Agamben reconstructs the legal genealogy of the state of exception by focusing on three main elements: Roman iustitium, doctrines of necessity, and modern emergency powers.

Iustitium in Roman Law

The iustitium was a Roman institution proclaimed in times of grave crisis (e.g., invasion, internal disorder). It involved the suspension of judicial and certain public activities.

Legal historians differ on the precise scope and implications of iustitium, and some argue that Agamben overstates its resemblance to modern emergency regimes. He nonetheless uses it as a paradigmatic case of institutionalized legal suspension.

Necessity (Necessitas)

From medieval canon law through early modern jurisprudence, necessity appears in maxims such as necessitas non habet legem (“necessity knows no law”).

Proponents of necessity doctrines held that, in extreme situations:

• rulers may act contra legem (against the law) to preserve the community;
• such acts may later be retroactively validated or excused.

Agamben highlights the paradox that necessity both authorizes and escapes law, revealing a foundational zone where legal norms are bracketed in the name of their own preservation.

Modern Emergency Powers

In modern constitutional orders, these earlier ideas are formalized in emergency clauses and provisions for states of siege, emergency, or exception:

Supporters often view such clauses as necessary safeguards, especially when combined with time limits and parliamentary or judicial oversight. Agamben reads them instead as juridical attempts to codify and manage the extra-legal—an effort to fit necessity and suspension into the framework of positive law, thereby institutionalizing the state of exception.

8. Sovereignty, Political Theology, and the Decision on the Exception

A central theme of State of Exception is the relation between sovereignty and the power to decide on emergency measures, approached through the lens of political theology.

Sovereign Decision on the Exception

Following Carl Schmitt, Agamben engages the formula:

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“Sovereign is he who decides on the exception.”

— Carl Schmitt, Political Theology

This dictum suggests that sovereignty manifests itself most clearly not in normal lawmaking, but in the capacity to determine when the normal legal order is suspended and what measures are taken in its place.

Agamben analyzes how, in many constitutional systems, the authority to declare and manage a state of emergency is concentrated in the executive (e.g., president, government). This decisional power often includes:

• defining the existence and scope of the emergency;
• issuing decrees or orders with force-of-law;
• temporarily setting aside legislative procedures or rights.

Political Theology

Political theology examines analogies between theological and political concepts. Schmitt famously argued that modern state theory secularizes theological ideas (e.g., the sovereign as analogous to God).

Agamben adopts this framework but extends it:

For Agamben, the state of exception is the legal space where this analogy becomes operative: sovereignty appears as a kind of “miraculous” power to create a zone in which law is both valid and not applied.

Divergent Interpretations

• Some theorists, following Schmitt, see the decision on the exception as the origin or foundation of legal order.
• Liberal constitutionalists tend to minimize the centrality of such decisions, emphasizing rule-bound governance and judicial review.
• Agamben’s reading underscores the ambivalence of sovereignty: it both institutes law and holds the capacity to suspend it, revealing a structural tension between legality and political decision.

9. Law, Force-of-Law, and the Zone of Indistinction

A distinctive contribution of State of Exception is its analysis of force-of-law and the resulting zone of indistinction between law and non-law.

Force-of-Law Without Law

Agamben distinguishes between:

• Law (lex, norma): formally enacted rules or statutes;
• Force-of-law (forza di legge): the coercive power ordinarily attached to such norms.

In states of exception, he argues, this force becomes detached from specific norms and wielded through:

• emergency decrees;
• administrative or police measures;
• executive acts that may lack clear legislative authorization.

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“What is at issue... is the separation of ‘force-of-law’ from the law.”

— Giorgio Agamben, State of Exception (paraphrased)

This separation creates measures that are effective and binding like law but do not pass through ordinary lawmaking procedures.

Zone of Indistinction

The state of exception, for Agamben, produces a “zone of indistinction” where it is difficult to say whether an act is inside or outside the legal order. Characteristics of this zone include:

Proponents of emergency frameworks often maintain that, despite such tensions, a minimum of legality persists via authorizing clauses and oversight mechanisms. Critics, including Agamben, contend that this structure risks normalizing a permanent twilight between law and arbitrary power.

The concept of force-of-law without law thus serves to highlight how modern governance can operate through flexible, provisional norms that are continually modifiable, while still claiming legal validity.

10. Bare Life, the Camp, and Biopolitics

Although State of Exception concentrates on legal form, it is closely tied to Agamben’s broader concepts of bare life, the camp, and biopolitics developed in Homo Sacer.

Bare Life (Nuda Vita)

Bare life denotes life stripped of political status and formal rights, exposed directly to coercive power. In the context of the state of exception:

• individuals or groups can be placed under emergency regimes;
• ordinary legal protections are suspended or weakened;
• they remain factually within the jurisdiction of the state but lack full juridical recognition.

Agamben interprets this as a central effect of the state of exception: by suspending law, the sovereign isolates life in a sphere where it can be acted upon without the usual guarantees.

The Camp as Paradigmatic Space

Agamben describes the camp (e.g., concentration camps, internment centers, certain refugee camps) as the “nomos of the modern,” a spatialization of the state of exception. In these spaces:

State of Exception refers back to this analysis to suggest that the juridical structure enabling camps is the codified emergency regime.

Biopolitics

Drawing on Michel Foucault, Agamben situates the state of exception within biopolitics—forms of power focused on managing life, population, and biological existence. On this view:

• the state of exception provides a legal mechanism through which biopolitical control can be intensified;
• the line between protecting and exposing life becomes unstable, as security measures justify extraordinary interventions.

Commentators differ on how far this framework applies beyond extreme cases. Some see it as illuminating a general tendency of modern governance; others argue that many legal systems maintain robust protections that complicate the notion of pervasive bare life.

11. Readings of Carl Schmitt and Walter Benjamin

A key part of State of Exception is Agamben’s interpretation of Carl Schmitt and Walter Benjamin on law, violence, and emergency, especially in Chapter 4, “Gigantomachia Concerning a Void.”

Carl Schmitt

Agamben engages Schmitt’s works, notably Political Theology and The Dictatorship, emphasizing:

Proponents of Schmitt read him as clarifying the inevitability of decisive authority in crises. Agamben acknowledges this diagnostic power but suggests that Schmitt underestimates the dangers of institutionalizing the exception and the legal “void” it opens.

Walter Benjamin

Agamben contrasts Schmitt with Walter Benjamin, especially the “Critique of Violence” and the “Theses on the Philosophy of History.”

Benjamin famously writes:

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“The ‘state of emergency’ in which we live is not the exception but the rule.”

— Walter Benjamin, “Theses on the Philosophy of History,” Thesis VIII

Agamben interprets Benjamin as recognizing that emergency has become structural, not merely episodic. He also discusses Benjamin’s notion of “divine” or “pure” violence”, which supposedly breaks with the cycle of law-making and law-preserving violence.

The “Gigantomachia Concerning a Void”

Agamben presents the confrontation between Schmitt and Benjamin as a “gigantomachia concerning a void”—a struggle over how to understand the empty space opened when law is suspended:

• For Schmitt, this void is filled by sovereign decision, reaffirming the primacy of political authority.
• For Benjamin (in Agamben’s reading), it points toward the possibility of a different relation between law, violence, and life, no longer governed by the logic of exception.

Commentators diverge on whether Agamben’s reading of either thinker is selective or anachronistic. Nonetheless, this dual engagement serves as the philosophical core of State of Exception’s reflection on emergency.

12. Anthropological Figures: Feast, Mourning, and Anomie

In Chapter 5, “Feast, Mourning, Anomie,” Agamben turns to anthropological and historical figures to illuminate how societies symbolize and manage the suspension of norms.

Feast

The feast is presented as a moment in which ordinary rules are temporarily relaxed or inverted:

• social hierarchies may be reversed;
• prohibitions (on food, behavior, speech) are lifted or transformed.

Anthropologists have often seen festivals as licensed transgressions that ultimately reaffirm the social order. Agamben uses this figure to suggest an analogy with the state of exception: a formalized bracket in which normal norms do not apply, yet which remains somehow internal to the legal-moral system.

Mourning

Mourning rituals also entail regulated departures from ordinary conduct:

Agamben reads such practices as further examples of how a community can institutionalize a limited anomie, a zone where the law steps back without being abolished.

Anomie

The key concept tying these figures together is anomie, a condition of lawlessness or normlessness. In Agamben’s treatment:

• anomie is not mere chaos, but a structured suspension of norms;
• the state of exception can be seen as a juridical anomie, paralleling the festive or mourning anomie in the social and symbolic realm.

Different scholars dispute whether these analogies illuminate or obscure the specifically political character of emergency powers. Supporters find them helpful for understanding how societies symbolically negotiate their own limits; critics suggest that legal and anthropological phenomena may not be directly comparable.

13. Case Studies: Modern Constitutions and Security Legislation

State of Exception incorporates a series of concrete references to modern constitutions and security laws to illustrate how the exception is codified and applied.

Constitutional Provisions

Agamben discusses:

He uses these examples to show how modern constitutions attempt to internalize the exception, giving it a formal place within the legal order.

Constitutional theorists often emphasize accompanying safeguards (parliamentary approval, time limits, judicial review). Agamben stresses instead the way these clauses blur boundaries between normal and exceptional rule.

Security Legislation and the “War on Terror”

The book pays particular attention to:

• the U.S. Patriot Act;
• executive orders and military directives concerning “enemy combatants”;
• European anti‑terrorism statutes and detention regimes.

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“The USA Patriot Act... radically erases the distinction between administrative and criminal detention.”

— Giorgio Agamben, State of Exception (paraphrased reference)

He treats such measures as contemporary instances of force-of-law without law, where executive or administrative acts effectively create new legal conditions.

Interpretive Disagreements

• Supporters of these frameworks argue they remain constrained by constitutional review, legislative oversight, and public scrutiny.
• Critics—including some who draw on Agamben—contend that they foster indefinite emergencies, expanded surveillance, and exceptional zones (e.g., offshore detention sites).

Agamben’s use of case studies is selective and primarily illustrative, oriented toward demonstrating the structural features of emergency powers rather than providing a comprehensive legal survey.

14. Philosophical Method and Sources

Agamben’s method in State of Exception combines conceptual analysis, genealogical reconstruction, and textual interpretation.

Methodological Features

1. Genealogy of Legal Forms
   Agamben traces institutions such as iustitium, necessity, and emergency clauses across historical periods. This resembles a Foucauldian genealogy, focusing on how practices and concepts emerge and transform rather than on a linear doctrinal history.

2. Paradigmatic Reasoning
   He often proceeds by isolating paradigms (e.g., the camp, the exception) that are not universal laws but exemplary configurations through which broader patterns can be seen.

3. Interpretive Close Reading
   The book relies heavily on close readings of legal and philosophical texts, treating them as sites where conceptual tensions become explicit.

Major Sources

Agamben frequently draws on German and Italian legal scholarship, sometimes in specialized debates that he reinterprets for broader theoretical purposes. Legal historians and jurists have questioned aspects of his reconstruction, arguing that he occasionally abstracts from institutional detail to fit his conceptual schema.

Position within Philosophical Traditions

The work stands at the intersection of:

• Continental political philosophy (Heideggerian and Benjaminian influences);
• Critical legal studies (emphasis on the indeterminacy and political foundations of law);
• Political theology (structural analogies between theology and state theory).

This hybrid method has been praised for opening new perspectives on emergency powers, but also criticized for blurring distinctions between legal-historical scholarship and philosophical speculation.

15. Critical Reception and Key Debates

Upon publication, State of Exception quickly became a focal point in debates on emergency powers, constitutionalism, and biopolitics.

Initial Reception

In political theory and critical legal studies, the book was widely discussed for its:

• concise synthesis of legal history and continental philosophy;
• provocative thesis that the state of exception has become a dominant governmental technique.

In more doctrinal legal circles, responses were mixed, with some scholars finding its conceptual clarity valuable, and others viewing it as overly abstract.

Major Lines of Critique

Supportive and Extending Readings

Supporters and interlocutors have used Agamben’s framework to analyze:

• refugee and migrant detention;
• counterterrorism measures in Europe, the Middle East, and Latin America;
• exceptional zones such as Guantánamo Bay.

Some see the work as a crucial complement to Foucault’s biopolitics, emphasizing the legal form of biopolitical governance. Others draw on it to critique executive aggrandizement and the erosion of civil liberties.

The book thus occupies a contested but influential position, generating ongoing debate about how best to conceptualize and regulate emergency powers.

16. Legacy and Historical Significance

State of Exception has had a substantial impact on contemporary discussions of law, sovereignty, and security, particularly in the decades following 9/11.

Influence on Scholarship

The book has become a standard reference in:

• political philosophy, as part of the broader Homo Sacer project on sovereignty and bare life;
• critical legal studies, for its analysis of the zone of indistinction between law and non-law;
• security studies and international relations, where its thesis about the normalization of emergency powers informs analyses of counterterrorism and surveillance.

Works by scholars such as Thomas Lemke, Andrew Norris, Bonnie Honig, and Nomi Claire Lazar explicitly engage with and critique Agamben’s account, whether to extend his analysis of biopolitics or to propose alternative models of emergency governance.

Impact on Public and Policy Debates

Beyond academia, Agamben’s vocabulary—state of exception, bare life, camp—has entered broader critical discourse. Commentators have invoked it in discussions of:

Supporters argue that his framework helps reveal structural continuities between seemingly disparate practices of confinement and emergency rule. Critics caution that the widespread use of his terminology can obscure important differences between legal regimes and empirical situations.

Long-Term Significance

Historically, State of Exception is often seen as consolidating the Homo Sacer series as a major contribution to post‑Foucaultian political thought, especially by foregrounding the legal-constitutional dimension of biopolitics. It has stimulated sustained debate on:

• how constitutional democracies should design and limit emergency powers;
• whether the trend toward permanent security measures constitutes a fundamental transformation of the rule of law;
• how to conceptualize the relationship between legal orders and the lives they govern and expose.

While assessments of its accuracy and normative adequacy vary, the work has become a key point of reference in any contemporary discussion of emergency, sovereignty, and the politics of security.